The widow of Michael Dimezza filed a lawsuit against the operator of a garbage truck, FCC Environmental Services, LLC, for wrongful death arising from an accident that took the life of her husband. Mr. Dimezza was on a motorcycle and was stopped at a traffic light in Lakeland, Florida when he was struck from behind by the garbage truck according to The Ledger.
Investigation Remains Open
The Ledger reports that the investigation remains “open,” however, liability appears to be disputed. The newspaper indicates that the garbage truck driver was on the phone shortly before the collision and may have been using the phone for directions. The newspaper also indicates that there is video of Mr. Dimezza’s motorcycle was stopped at a green light for about 15 seconds without explanation.
The collision happened at approximately 5:30 a.m. on February 27, 2018.
Liability Problem For The Garbage Truck Operator
While the fact that Mr. Dimezza’s motorcycle was stopped at a green light for 15 seconds before impact may be enough to get the garbage truck operator past Florida’s presumption of negligence in rear-end collisions, the garbage truck operator is going to have to explain his version of why the impact was unavoidable in light of his use of a cell phone and the fact that this particular intersection had functional street lighting at the time of the accident.
Even if Mr. Dimezza was negligent in stalling his motorcycle or failing to properly maintain his motorcycle (so that he got stuck in the roadway without a functioning tail light), a truck driver is required to keep a proper lookout on to the roadway for hazards. At best, the jury may apportion only a degree of comparative fault to the motorcycle driver rather than blaming the motorcycle driver completely under these circumstances.
More likely, the jury will consider the speed of the truck by looking at how far the truck traveled after the impact and the degree of distraction of the truck driver.
What Should The Plaintiff Do
The plaintiff in this case should seek to discover the following:
- the driving history of the truck driver to determine whether he was qualified or negligently retained as an employee
- the cell phone records of the truck driver
- the company policies for truck drivers using cell phones, including navigation devices
- the accident history of the garbage truck company, particularly for other accidents where cell phone use was involved
- obtain an accident reconstruction simulation because liability appears to be disputed
The plaintiff should also conduct a detailed deposition of the garbage truck driver regarding his cell phone usage considering the following law regarding cell phone use in a commercial vehicle (see 2015-2016 Florida CDL Handbook):
49 CFR Part 383, 384, 390, 391 and 392 of the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR) restricts the use of hand-held mobile telephones by drivers of commercial motor vehicles (CMVs); and implements new driver disqualification sanctions for drivers of CMVs who fail to comply with this Federal restriction; or who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of hand-held mobile telephones. Additionally, motor carriers are prohibited from requiring or allowing drivers of CMVs to use hand-held mobile telephones.
The use of hand-held mobile telephones means, ‘‘using at least one hand to hold a mobile telephone to conduct a voice communication; “dialing a mobile telephone by pressing more than a single button”; or “moving from a seated driving position while restrained by a seat belt to reach for a mobile telephone”. If you choose to use a mobile phone while operating a CMV, you may only use a hands free mobile phone that is located close to you and that can be operated in compliance with the rule to conduct a voice communication.